ALJDEC decisions subject to certification as final

2021A-06514-CHC-ROC · Registrar of Contractors · 2022-06-06

-54864001

001

-137160-45720000 IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Michael Scott Lyons,

COMPLAINANT,

Build AZ, LLC,

License No. ROC 327130,

RESPONDENT.

No. 2021A-06514-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 3, 2022

APPEARANCES: Complainant Michael Scott Lyons appeared on behalf of himself. Nick Korbe appeared on behalf of Respondent Build AZ, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. Respondent Build AZ, LLC (Build AZ) holds license number 327130 issued by the Arizona Registrar of Contractors (ROC).

2. On or about October 19, 2021, Complainant Michael Scott Lyons and Build AZ entered into a residential remodeling contract. See the ROC’s administrative record, pgs. 3-5.

3. On or about November 15, 2021, Build AZ started work.

4. On or about November 21, 2021, Build AZ stopped work.

5. On or about December 9, 2021, Mr. Lyons filed a complaint with the ROC alleging poor work on the part of Build AZ. The complaint contained 17 complaint items.

6. The ROC assigned the complaint to ROC Investigator Cindy Adams.

7. On January 26, 2022, Investigator Adams conducted a job-site inspection. See the ROC’s administrative record, pgs. 37-141. No one was present on behalf of Build AZ at the job-site inspection. Approximately 10 to 15 minutes before the job-site inspection began, Mr. Korbe notified Investigator Adams by telephone that he was in Oregon and had no plans of returning to Arizona. Mr. Korbe was aware that Build AZ’s license was currently suspended. See id.

8. On February 22, 2022, the ROC issued a Directive to Build AZ. Through the Directive, the ROC directed Build AZ to correct complaint items 2, 3, 4, 5, 7, 8, 9, 12, 13, 15, and 16, by appropriate means, no later than 5:00 p.m. on March 15, 2022.

See the ROC’s administrative record, pgs. 146-156.

9. After the Directive was issued, Mr. Korbe called Investigator Adams and inquired about the process for renewing AZ Build’s license. Investigator Adams advised Mr. Korbe to contact the licensing department. At the time, Mr. Korbe was living outside of the State of Arizona.

10. Build AZ did not correct the items listed in the Directive by March 15, 2022.

11. On or about March 29, 2022, the ROC issued a Citation to Build AZ alleging that Build AZ may have violated Arizona Revised Statutes (A.R.S.) sections 32-1154(A)(3),(22), and Arizona Administrative Code R4-9-108(A).

12. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

13. A hearing was held on June 3, 2022.

14. At hearing, Mr. Lyons testified on behalf of himself and presented the testimony of Johnny Blanco, Joe Bernardo, and Bob Rollins. Investigator Adams testified regarding her investigation of the complaint and the issuance of the Directive. Mr. Korbe testified on behalf of Build AZ.

15. Mr. Lyons explained that Build AZ performed poor work when it remodeled his home.

16. Johnny Blanco is a member of the third generation of his family to perform flooring work. Mr. Blanco observed lippage in Mr. Lyons’s home. Mr. Blanco opined that Build AZ did not perform sufficient and adequate preparation work. Mr. Blanco stated that he observed differences in height throughout the floors in Mr. Lyons’s home.

17. Joe Bernardo has had 15 years of experience in tile and floor installation in the Valley and in Connecticut. Mr. Bernardo walked through Mr. Lyons’s home in or around November of 2021. Mr. Bernardo observed lippage in the home. Mr. Bernardo observed that there was no schluter metal on the stairs. Mr. Bernardo stated that he observed differences in height throughout the floors in Mr. Lyons’s home.

18. Bob Rollins has 45 years of experience in construction and 22 years of experience as a general contractor. For the last 14 years, Mr. Rollins has worked as a Senior Construction Administrator for an International Architectural firm. Mr. Rollins observed Mr. Lyons home and believed that Build AZ laid tile over existing tile.

Mr. Rollins stated that he observed differences in height throughout the floors in

Mr. Lyons’s home.

19. Mr. Korbe disagreed that Build AZ performed a poor installation. Mr. Korbe stated that he offered to repair the work, but Build AZ only wanted a complete reinstallation. Mr. Korbe mopped the floors twice in Mr. Lyons’s home. Mr. Korbe explained that he told Investigator Adams that he would not return to make repairs under the Directive. Mr. Korbe stated that he did not remove the thin set because Mr. Lyons did not pay for the removal.

20. Administrative notice is taken of Respondent’s prior License record on June 6, 2022. Such prior License record reflects that Respondent’s license number 327130

was first issued on December 13, 2019, and is suspended. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

1. This matter lies within the ROC’s jurisdiction. See A.R.S. § 32-1101 et seq.

2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119.

3. A preponderance of the evidence is “such proof as convinces the trier of

fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).

4. The suspended status of Respondent’s license does not deprive

Complainant of his right to prosecute his complaint against Respondent or prevent the ROC from determining the merits of Complainant’s complaint. This matter lies within the ROC’s jurisdiction.

5. The Administrative Law Judge may consider the ROC’s administrative record. See A.A.C. R4-9-118.

6. The preponderance of the evidence shows that Respondent performed poor work as alleged in Complaint items 2, 3, 4, 5, 7, 8, 9, 12, 13, 15, and 16. The preponderance of the evidence shows that Respondent failed to remodel Mr. Lyons’s home in a professional and workmanlike manner, which is a violation of A.R.S. section 32-1154(A)(3), namely A.A.C. R4-9-108(A).

7. The evidence presented at hearing shows that Respondent’s license was suspended at the time that the Directive was issued. However, there was no evidence presented at hearing that Respondent attempted to resolve the matter financially with Complainant. The preponderance of the evidence shows that Respondent failed to correct the items listed in the Directive without valid justification, which is a violation of A.R.S. section 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the ROC shall suspend license number 327130 held by Build AZ LLC, for three days.

It is further recommended that the ROC require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. section 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the ROC’s final order, the ROC revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. section 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

Done this day, June 6, 2022.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order is forty days after the date of that certification.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

By Miranda Alvarez

Legal Secretary